Broken Landscape

Indians, Indian Tribes, and the Constitution

Frank Pommersheim

Provides a new challenge to revisit and amend the U.S. Constitution in order to provide inclusion to Indian tribes and Indian peoples

Sweeping legal history pointing out the ways in which the constitution has been elided in Indian law cases argued before the U.S. Supreme Court

First book to focus on the relationship between Indians, Indian tribes, and the Constitution

Broken Landscape

Indians, Indian Tribes, and the Constitution

Frank Pommersheim

Description

Broken Landscape is a sweeping chronicle of Indian tribal sovereignty under the United States Constitution and the way that legal analysis and practice have interpreted and misinterpreted tribal sovereignty since the nation's founding. The Constitution formalized the relationship between Indian tribes and the United States government--a relationship forged through a long history of war and land usurpation--within a federal structure not mirrored in the traditions of tribal governance. Although the Constitution recognized the sovereignty of Indian nations, it did not safeguard tribes against the tides of national expansion and exploitation

As Broken Landscape demonstrates, the federal government has repeatedly failed to respect the Constitution's
recognition of tribal sovereignty. Instead, it has favored excessive, unaccountable authority in its dealings with tribes. The Supreme Court has strayed from its Constitutional roots as well, consistently issuing decisions over two centuries that have bolstered federal power over the tribes.

Frank Pommersheim, one of America's leading scholars in Indian tribal law, offers a novel and deeply researched synthesis of this legal history from colonial times to the present, confronting the failures of constitutional analysis in contemporary Indian law jurisprudence. Closing with a proposal for a Constitutional amendment that would reaffirm tribal sovereignty, Pommersheim challenges us to finally accord Indian tribes and Indian people the respect and dignity that are their due.

Broken Landscape

Indians, Indian Tribes, and the Constitution

Frank Pommersheim

Table of Contents

AcknowledgementsPart I: The Early Encounter Introduction: A New Challenge to Old Assumptions2. Early Contact: From Colonial Encounters to the Articles of Confederation3. Second Opportunity: The Structure and ARchitecture of the Constitution4. The Marshall Trilogy: Foundational But Not Fully Constitutional?5. Lone Wolf v. Hitchcock: The Birth of Plenary Power, Incorportation, and an Extraconstitutional RegimePart II: Individual Indians and the Constitution 6. Elk v. Wilkins: Exclusion, Inclusion and the Ambiguities of Citizenship7. Indian Citizens and the First Amendment: The Illusion of Religious Freedom?Part III: The Modern Encounter 8. Indian Law Jurisprudence in the Modern Era: A Common Law Approach Without
Constitutional Principle9. International Law Perspective: A New Model of Indigenous Nation Sovereignty?10. Conclusion: Imagination, Translation, and Constitutional ConvergenceIndex

Broken Landscape

Indians, Indian Tribes, and the Constitution

Frank Pommersheim

Author Information

Frank Pommersheim teaches at the University of South Dakota School of Law, where he specializes in Indian law. Prior to joining the faculty in 1984, he lived and worked on the Rosebud Sioux Reservation for ten years. He has served on a number of tribal appellate courts throughout Indian country and currently serves as Chief Justice for the Cheyenne River Sioux Tribal Court of Appeals and the Rosebud Sioux Supreme Court. He is the author of Braid of Feathers: American Indian Law and Contemporary Life and East of the River: Poems Ancient and New.

Broken Landscape

Indians, Indian Tribes, and the Constitution

Frank Pommersheim

Reviews and Awards

"In elegant, year clear, and easy-to-read prose, Pommersheim provides a summative legal history and a constitutional analysis of some of the core Supreme Court decisions related to the role of the US Constitution in American Indian law...useful and accessible for American Indian tribal governments and tribal citizens, as well as of interest to scholars and students in other disciplines, such as Political Science and American Indian Studies."--Law and Politics Book Review

"A useful study...adequately conveys some of the fascinating difficulties and conundrums that severely complicate the relationship between indigenous nations, their tribal citizens, and the United States."--American Historical Review

"Offers a close and devastating reading of the defining cases in the field...Part of the mastery displayed in the text is [Pommersheim's] ability to move so quickly yet so thoroughly from the Cherokee Cases of the 1830s to Lone Wolf v. Hitchcock to contemporary Supreme Court cases...A nuanced, thoughtful, and original approach--a unique contribution to Indian law, and essential reading for all those interested in the field."--CHOICE

"Pommersheim delivers a beautifully written, detailed account of the complicated nature of Indian nations within the federal system and provides a roadman for understanding how tribal sovereignty has been situated-directly or indirectly-in the American constitutional framework since the nation's founding...The sweeping project chronicles a history that is, for scholars in the field, comfortably familiar, yet Pommersheim sheds new light on historical events and policies that shaped the founding of the United States, and, accordingly, its relationship with the indigenous nations it encompasses...Broken Landscape is a comprehensive, beautifully crafted, ambitious work that courageously breaks from the swarm of contemporary critique of the Supreme Court's Indian law
jurisprudence...Pommersheim has written the book as an invitation to dialogue, and an incitement to action."--Journal of Legal Education

"Anyone who follows the writing about the Sioux (Lakota/Dakota/Nakota) cannot help but be attracted to a book with the title Broken Landscape...Pommerhseim spends some time indicating that he is pessimistic about the possibility that US courts and Congress will ever accept the criminal nature of their behavior so arduously traced in this text, which means that little can be done to rectify the sins of the past except to amend the Constitution and put our faith in the future of that document. This proposal is what make this book a milestone in the regional discussions here in South Dakota."--Wicazo Sa Review

"An outside-in look at what has gone wrong within federal Indian law at the national level because of failures by the Congress and the Supreme Court. Pommersheim provides a wonderfully readable history about the development of law regarding Indians and Indian tribes."--Tribal College Journal of American Indian Higher Education

"For Frank Pommersheim, the landscape of American Indian Law is broken because the Supreme Court's longstanding drift ignores both original constitutional intent and the quality of modern tribal governments. Can his call for a clarifying constitutional amendment to fortify tribal sovereignty, even given his deep scholarship and sensible, straightforward thinking, possibly be realistic? We'll see. But this powerful, compelling narrative puts the proposal on the table, and it will be noticed."--Charles Wilkinson, Distinguished University Professor and Moses Lasky Professor of Law at the University of Colorado, and author of American Indians, Time, and the Law and Blood Struggle

"Professor Pommersheim has made an important new contribution to a significant project he initiated in Braid of Feathers. Instead of stopping with a critical dissection of our legal and historical understanding of tribes and Indian law, he proposes a new integration that is consonant with our best selves and with a deep understanding of what it means to be sovereign. Disagree where we will, we would do well to listen to his voice and to engage with his powerful vision."--Gerald Torres, Bryant Smith Chair in Law, University of Texas at Austin

"Frank Pommersheim's Broken Landscape offers a brilliant, sweeping, and comprehensive overview of the development of Indian Law and the Constitution. The book will be to this generation of Indian law students and policy makers what Charles Wilkinson's American Indians, Time, and the Law was to the last."--Lindsay G. Robertson, Orpha and Maurice Merrill Professor of Law, History, and Native American Studies, University of Oklahoma